
    
      Holbrook and Fessenden vs. Russel Hyde.
    
    That neither party has a right to claim oftho court instructions to the Jury upon a point not material to the-issue, unless it be to place it out of the cause.
    .Neither can they claim instructions in any precise form, if the instructions proper in the case arc fully given in any form.]
    That property, readily distinguished as cattle are, is not lost, nor the right of recovery embarrassed, by commixture.
    In -this action -the plaintiffs obtained a verdict in the County Court, and the exceptions taken by the defendant and allowed by the judges who tried the cause, present the questions raised before the Supreme Court. Those exceptions a-re as follow : “Holbrook and Fessenden vs. Ryssel Hyde, tried at Windham County Court, ■September Term, 1827. There was no dispute but that the defendant took .the -property as charged in the declaration of the .plaintiffs. -But he justified the taking by virtue of sundry writs and executions, to-him directed, in favor of sundry creditors of Ira Wetherhead, and against said Wetherhead, and that it was taken as bis property — so that the real dispute was, whether the property in question belonged to the plaintiffs exclusively, or so belonged to said Wetherhead, as to bo liable to attachments and levies for his debts. The plaintiffs introduced evidence tending to show — 1Thatin-March,or A-prii, 1822, they owned two farms in Halifax, about 12 miles from their own residence,, — oho called the WeeJcs farm, and the other called the York farm — that they let said farms with fifteen or sixteen cows, and a wag-gon, to said Ira for one year, on terms of dividing the produce; and said Ira to have one half — That said Ira had lived at Guilford, and had been reputed to be worth about one thousand dollars, in a small farm and other property, but had failed — but settled his affairs without suits — That he was reputed to be poor and embarrassed in his circumstances when he left Guilford and took said farms — That said Ira occupied said farms, said year, his family living on the Weeks farm — That in the spring of the year 1823, the plaintiffs leased said two farms to said Ira for a year, he to give for the usé one thousand pounds of pork, one thousand pounds of cheese,and one hundred pounds of butter — as by a written lease, marked A. and made a-part of tfiis case, will appear— That the said Ira in the said spring of 1823, was reputed to be worth from one to two hundred dollars — That said Ira occupied said two farms said year under said lease — also that he continued-to occupy the same the year following, but it does not appear, on> what terms, only the plaintiffs’ counsel stated, that a sum of money was substituted for the pork,cheese, and butter; and this not denied by the defendant — That in the spring of 1823, the plaintiffs and said Ira agreed upon men to appraise the stock on.the farms, at the beginning and end of the year, to ascertain whether said Ira kept the samo good as he was to do — That accordingly said appraisers appraised fifteen cows and a yoke of oxen— that they found them as good in the spring of 1824 ; the oxen were not the same, nor were all the cows the same. The plaintiffs-were not pressnt at either of the said appraisals; that in the spring of 1825. a new contract was made, by which the said Ira was to-carry onthe farms for the sum of one hundred and fifty dollars for a year, and the plaintiffs have all the proceeds except what was-necessary for the suppoit of said Ira and his family, according to the stipulation of their written agreement, marked B., and madte a part of this case — That said Ira and family continued to take the care of the farms and dairy, under this contract, to- the end of the year, and still continued until the 17th day of August, 1826f, when they submitted to a neighbor of said Ira, to decide whether the price ought to be the same this year, considering the season, as was given in the year 1825, who awarded that the sum to be given the said Ira should be one hundred and sixty dollars; accordingly they agreed as in and by their written contract of that date, marked'C, and made a part of this case. There was also’ testimony concerning the value of the property taken by the defendant. There was no testimony on either side tending to show that the several charges in the terms of said Ira’s carrying on said farm, were publicly known, nor that any enquiry was made of the-plaintiffs concerning the same, nor that there was any attempt or' wish to keep the same a secret.
    The defendant introduced testimony tending to prove, that-said Ira, in the year 1825, let the house and garden on the Yorlc-farm to one Simeon Leonard, for a year,for twelve dollars ;■ that his cow was kept there winter and summer, and that said Leonard paid for all this in foddering cattle on said farm in winter, in labor on said farm, and some in shoe-making; that said Ira took to pasture, on said ¥orh-farm, 20 or 30 sheep for his brother,, a few weeks in 1825 ; that said Ira purchased goods for his family, and articles to use on said farms, as mentioned in the deposition of George Tracy, made a part of this- case. Some other similar purchases were made, but tbeir dates did not appear. The defendant, in his defence, produced regular precepts, shewing his right to take the property in question, if it were the property of said Ira ; and attempted to shew that it was the property of said Ira —and that if any of it belonged to the plaintiffs, at any time, they had suffered said Ira so to use it, and so trade upon it, and so mix it with his own,that his creditors had a right to take, it for his debts. And the defendant introduced testimony tending to show the following facts, to wit, That said Ira, during all the time he so occupied and took care of said farms of the plaintiffs, hired of one Wilcox about thirty acres of land adjoining said Weeks farm, at a rent of about eighteen or twenty dollars a year, and cut thereon about ten tons of hay, yearly, and in said year 1826, cut about ten tons of hay thereon — that all this hay was puf into the samo barn with the hay cut oh the plaintiffs’ arms, in possession of said Ira, and no ac•count kept of the' same — -That the same was foddered out to, and the 30-acre-piece fed by; the stock of plaintiffs, and that pur» chased by said Ira, promiscuously — That said Ira,after the contract about the occupancy of the farms, made in the spring of 1825^ and before the taking by the defendant now complained of, made the following trades: “That in the fall Of 1825, he sold to Esq. Good-hue of Brattleboroúgh eight swine from said farm; to which sale said Fessenden had before expressed' his consent to said Good-ime — That said Ira, in the spring of 1826, exchanged a pair of oxen, that were On the farm, with Nathan Marshy for a pair of steers, and received thirty five dollars in cash as boot-, and sold said steers to one Crosier, for fifteen dollars cash and Crosier’s note for fifteen dollars,which note he transfered to Mr.Houghtonj in part payment of said Ira’s debt to said Houghton — That these oxen, exchanged with said Marsh, were called the Houghton oxen — That said Ira, in April, 1825-, bought of Mr. Niles the ox* en called the Niles oxen, and gave his note for fifty seven dollars,which is not yet paid — That he asked said Fessenden to pay said note, and he answered that he would pay it if he was obliged to pay it — That since this suit was brought, said Holbrook told him he should have his pay — -That in May, 1826, Benjamin Green sold said Ira two cows for thirty six dollars, and took his note, six dollars only of which have been paid“That said Ira, about th® same time, bought a two-year-old bull, but how, or whether paid for, was not named by the witness — That said Ira bought a cow of Mrs. York, and paid in ready cash at the appraisal of Col. Farnham i this the witness thinks was in the fall of 1825, but of this he is not certain-*-That in May, 1826, said Ira exchanged a pair of two-year-old steers with Charles Dennison, for a pair of four-year-old cattle, and gave his note $24,50, to boot — which note is not yet paid. A bill of sale, dated March 8,1825, from said Ira to the plaintiffs, was produced by plaintiffs, on notice from defendant, and read by defendant, and refered to as a part of this case; and there was no evidence of any consideration paid by plaintiffs for the same, otherwise than appears on said, bill of sale. Further evidence, adduced by the defendant, tended to show — That in the spring of 1825, said Ira, gave in the list of all the stock on said farms» and the list of the samo was made up against him, as was also the said Wilcox-farm — Kná the said farms of the plaintiffs were set in the list against the plaintiffs — and in 1826, said Ira gave in the personal property on both said farms in his own name to the listers, and the list of both said farms and property for that year, was made up against said Ira and the plaintiffs jointly, and that the plaintiff', promptly paid all the taxes assessed against them on said list, but refused to pay the taxes assessed against said Ira on said list of 1825, saying they did not know upon what it was made up; and there was no testimony shewing that they did know upon what it was made up — That on the morning of August 18, 1826, the plaintiffs procured a pair of four-year-old cattle, a pair of three, yeár-old steers, and’ four or five yearlings, to be driven to them at Braitleborough. The witness testified that starting before day was his own notion entirely. That in said August, 1826, and a few days before said August 17th, the sheriff had an execution against said Ira for about $40,00, and spoke to said Ira about his paying the same when he was at Brattleborough, near the dwelling of the plaintiffs — That in August or Sept. 1826, Martin, one of the attaching creditors, in presence of the defendant, told Fessenden they had attached the property on the farms, as said Ira’s, and wished him to designate which was his, and which said Ira’s: Fessenden said it was all his ; said Ira had none there, except the waggon and harness, which he ’ believed was Ira’s— That after this, the defendant returned ten of the cows to the plaintifls,and sold the rest at auction — That said defendant and the creditors applied to said Ira, before said attachment, to designate •wh'at property was his, and he declined. The said oxen bought of said Niles, and some other of said creatures bought by said Ira, were among the cattle attached by the defendant. The plaintiffs produced testimony tending to shew that the plaintiff on said August 17th, purchased of said Ira the three-year-old steers and young cattle, thus driven to Braitleborough — That the appraisers went and saw said four-vear-old cattle — but one of sgid appraisers said he did not remember that the said four-year-olds were appraised — Also further testimony tending to show that the amount of the creatures appraised was to be endorsed on one of three notes the plaintiffs then held against the said Ira — That said notes were then seen, and said Ira said it made no difference on which note the endorsement was made — That these notes had been in the files of the plaintiffs’ notes a year or two, or two or three years. The plaintiffs produced the three notes, on one of which was endorsed the said creatures so driven to Brattleborough — stating their separate prices, and amounting to seventy-six dollars. None of these cattle, so driven to Brattleborough, were attached by the defendant. There was also evidence tending to shew a full consideration for said note on which said cattle were endorsed, by plaintiffs paying one Hart a note for a like sum against said Wether head.
    The defendant requested the court to charge the jury, That the plaintiffs had not shewn any valid consideration for the property— Also, that the aforesaid acts and doings of the plaintiff and said Ira, were evidence of fraud against the creditors of said Ira — Also, that if the jury should find some of said property, in possession of said Ira, to be his property, but so mixed with the property of the plaintiffs, that the officer on due inquiry could not distinguish them, the plaintiffs could maintain no action against the officer for taking their property, until notice and demand of their property. The court did not charge as requested by the defendant; but did then and there instruct the jury- — “That if they believed the con- “ tract about said Ira’s taking and occupying said farms of the “ plaintiff’s from year to year, to be as the plaintiff s contended for; “ the said Ira would have the control of one half the produce of “ said farms, for the year 1822, or his first year, and would have “ the entire disposal of the produce, during his second and third “ years, or 1823 and 1824, and be liable to fulfil his contract to “ pay the rent, that is 1000 lbs. of pork, 1000 lbs. of cheese, and “ 100 lbs. of butter, for 1823, and the same, or money in stead “ thereof, for 1824 — that in 1825 and 1826, the said Ira would bo “ the mere hired man of the plaintiffs, and the whole produce “ would be theirs. If he traded upon their property in a way “ sanctioned by them, and acted in their name, and as their agent, “ the property by him thus purchased woyld belong to them, and 85 his possession on said farms, -would be their possession: Tint “ that if he purchased property upon “ his Own account, while he thus acted “ as a hired man of the plaintiffs, and gave his own private “ notes, and not notes of the plaintiffs, signed by him as their “ agent, and the creatures thus purchased were put upon said “ farms under the care of said Ira, they must be considered “ as in the possesion of said Ira, and any sale of the same from “ him to the plaintiffs would be incomplete, as against the credit- “ ors of said Ira, until a visible change of the possession from “ said Ira to the plaintiffs; that this was the fraud in law of which “ mention was made by counsel, and the attaching'creditors “ could hold the property. The Niles-oxen, and some cows “ were in this situation, if the testimony on the subject should gain “ credit with the jury — that so much of the property as they should “ find the defendant had attached, which had been thus purchased “ by the said Ira, and yet remained -under his care upon said “ farms, they would leave in, the haridi- of the defendant* for' the “ benefit of the attaching creditors — Further, that the doctrine of “ commixture contended for by the defendant, and which is law, “ as relates to such property as grain, and goods in a store, is not “ applicable to cattle, like those attached : they may be distin- “ guished on reasonable inquiry — That with regard to the hay cut “ in 1826, upon the Wilcox-farm, there was no testimony tend- “ ing to show that the plaintiffs knew of its being put in the barn “ with that cut upon the plaintiffs’ farms, and if there was any loss “ by commixture, it must fall upon him who occasioned it, which, “ in this case, it seems, would be the said Ira, under whom the “ defendant claims — That the jury might let the defendant retain “ so much of the hay as was cut upon the Wilcox-land,which is “ as.much as he can fairly claim as the result of what grew there. “ That with regard to the fraud in fact contended for, the court “ did not recollect sufficient evidence of such fraud to require “ any remarks from the court — yet if the jury recollected such “ evidence, they must give it its full weight — that fraud in fact ‘‘ consisted,in this case, in the plaintiffs getting into their custody, “ and claiming to own, the property which really belonged to said “ Ira, with intent to keep it from his creditors — That if the plain- “ tiffs had demands against said Ira which were honestly due a
      s might seem by the notes produced, they “ had a right to their pay like other credit- “ ors — That if they found no fraud in fact, they would find for the “ plaintiffs to recover the value of such property attached by the “ defendant, as they should find belonged to the plaintiffs, and had “ never been purchased nor owned by said Ira.” To which decisions the defendant excepted; and said exceptions were allowed.
    The papers referred tó in the said case, are there sufficiently described to show the bearing of the points of law, without making the case longer by their insertion at length.
    
      The counsel for the defendant argued in support of their exceptions. The errors apparent upon this record, are 1. The plaintiffs showed no valid title to, or consideration paid for,the properly in question. The property beinonerelv in possession of Wetherhead on their farm is as cons^fef^^^t^N^of its being owned by him, as.. them : and, indeed,under tfreftfnancy of the first, second, and third years, beir% uponysh|p^Mi|a rent certain. . The appraisal of the stock iijf plaintiffs and Wether-head, shewed nothii¿. Fq^^qc¿i^|rin^ny can always be pre- , pared by the party lleiendagjrcan never rebut it. Besides, Wetherhead, imBststh^&BSlTTought, sold, and exchanged this stock at pleasure with the privity of the plaintiffs. This gave him credit as for the real owner ; and the plaintiffs now shall not be permitted to controvert it. — 1 Aik. R. 370, Trask vs. Dora-, Qghue.— Winer’s Ab. 89. — Paley’s Agency, 78, note. — 7 R. 360-1. — The bill of sale was clearly fraudulent, delivery and pos-. session not following it. — Twine’s case. — 1 Aik. R. 116,JDurkee vs. Mahony.
    
    2. The jury having found a part of the property in question tb have clearly belonged to said Wetherhead, or at least, under the charge of the court, they might have so found it, but so mixed ■ with the plaintiffs’ property of a like kind, that the officer could not distinguish it, upon due and reasonable inquiry, the plaintiffs. can sustain no action against the officer, until they point out to him their property and demand it. — 7 Mass. R. 123. — This appears not to have been done; and the court charged that it was not necessary, “ because the officer on reasonable inquiry might distih-guish.” Bat the officer did make reasonable inquiry and could not distinguish,
    The rule is not confined exclusively to such articles as “ grain and goods in a store.” The court here, either made a distinction without a difference; or a distinction that does not apply to the case.
    3. The plaintiffs and Weiherhead were at best but tenants in common of the hay, and the jury had no power to sever. It was idle-to tell the jury on whom the “ loss by commixture should fall.”' There could be no loss. And the jury should have been instruct., ed that the plaintiffs by means of their farms, cannot be permitted to furnish for this insolvent debtor, a convenient deposit into which he may throw his property, and earnings, and thus mix and cover it from his creditors.
    4. The court misdirected and misled the jury, by instructing them, “ That the court does not recollect any sufficient evidence-of fraud in fact, to require any remarks from the court.” It is the duty of the court, not only to instruct the jury in the law, and also the facts they are to find; but particularly to point out what testimony will constitute the proper evidence of such facts. 1 Aik. lib, Purkee vs. Mahony. — ñd. 369, Mason vs. Silver.— If a factor, cestui que trust, or agent, continue a long possession, by which the goods are taken to be his own, and credit given to hint on that account, such goods may bo taken in execution against such agentand may be holden by the assignee under a commission of bankruptcy. — Winer’s Jib. 89. — 1 Aik. 370, TrasJc vs. Donoghue. — Pal. Agency. 78. — 7 T.Ii. 36.
    
      Counsel for the plaintiffs, contra. This was an action of trespass, for taking stock, hay, farming-tools, &c. The defendant justified under process against Ira Weiherhead; and the only question was, whether the property belonged to plaintiffs or Weih-erhead, and the questions now arise on exceptions taken to the charge of the court. The court charged the jury that as to all the property which was purchased by Weiherhead, and remained in his care, the plaintiffs’ title was fraudulent in law ; so the case to which the exceptions apply, relates only to the plaintiffs’ title to the rest of the property; whether it was fraudulent in fact.
    The defendant requested the court to charge .1. “That the plaintiffs had not shewn any valid consid-•oration for die property.” It is not perceived that any argument can be raised on a refusal so to charge. The farms belonged to the plaintiffs and were in their possession, Wetherhead being their hired man. They had put on the stock and tools. The hay, recovered for, grew on the land. Defendant produced a- bill of sale acknowledging a consideration for a part. The defendant was bound to shew property in Wetherhead.
    
    2.“That said acts and doings of the plaintiffs and Wether-head, were evidence of the fraud against the creditors of Wether-head.”
    
    
      As to those of Wetherhead, it is insisted they were not evidence,unless done by the knowledge and assent of plaintiffs; that the acts themselves, did not tend to show a want of property in plaintiffs, or a use made of it tending to defraud creditors. The first answer is deemed sufficient; yet each act complained of will be examined. These acts, are to be taken in connection with the relation of the parties, and that relation is presumed to be known to the creditors, as it might have been known by inquiry of plaintiffs.
    1. The letting of the Yor7c-house, keeping Leonard’s cow, pasturing his brother’s sheep. It is to be presumed this was to be.accounted for by Wetherhead, if done with the knowledge of plaintiffs; if not, it was in fraud of the plaintiffs, not of Wether-head’s creditors, but in favor of them. If it tended to prove fraud it would be that the farm was his.
    2. That he purchased goods for his family,(and why not ?) and articles to be used on his farm. An authority to do this, resulted from the relation of the parties; and if paid for, or furnished by Wetherhead, were matters in account between the parties.
    3. That he hired 30 acres of Wilcox, from 1822 to 26, and that the produce was promiscuously fed out to Wetherhead’s and plaintiffs’ cattle, &c. This would also be matter of account and the keeping of Wetherhead's cattle offset against the profits of this land : but could have no tendency to affect plaintiffs’ title to his property, real or personal. The part of the hay cut on this piece in 1826, was exclusive of the charger
    4. 1 hat in 1825 he sold to Goodhue eight swine off of said farm, by tbe consent of Fessenden. This tends to prove property in plaintiffs. 5.That in ¿826,Wetherhead exchanged a pair of oxen for a pair of steers and $35; sold the steers to Crosier for cash$15,and his note for $15, which note he sold to Houghton in payment of Wether-head's debt, and that said oxen were called the Houghton oxen. If these trades were made with the plaintiffs’ assent, that they were the authorized acts of the agent, and what was received, so far as went to Wetherhead’’s benefit, was matter in account. If not with plaintiffs’ assent, they were unauthorized, and not a fraud on Wetherhead's creditors, but on the plaintiffs. It is not perceived that any inference cm be drawn from the name of the oxen.
    6. That in April, 1825, Wetherhead bought of JYiles the Niles' oxen for his note of $57, which Fessenden said he would pay, if obliged to; and Holbrook, since the action, said he would pay. What become of these oxen does not appear, only by the charge. But if plaintiffs were bound to pay for the oxen, unless included in bill of sale, 1826, it would' seem that the oxen would be theirs by !’/etherhead’s purchase. íhese were excluded by the charge.
    7. That in May, 1826, Green sold two cows to Wetherhead, for his note of $36,00, and six dollars only has been paid. What became of these does not appear, unless contained in the bill of sale of 1826; if so,were excluded by the charge.
    8. That about the same time Wetherhead bought a two-year-old bull — but it did not appear how he j^aid for it. The same remarks may be made here as in the last point.
    9. That at the same time Wetherhead bought a cow of York, for cash $10,00 — in 1826,exchanged a pair of two-year-old steers with Dennison, for a pair of four-old-ólds, and gave his note for $24,50, boot.
    10. All these purchases only prove that V/elherhead some times purchased on his own account : and this is also proved by plaintiffs purchasing of him ; but has no tendency to affect plaintiffs’ title.
    - 11. The bill of sale of 18th March, 1825, expressing a consideration. This was produced by defendant, and is evidence of what it purports. It was not necessary for plaintiffs to support it by proof of consideration; but for defendant to impeach it.
    12-. That in 1825, Wetherhead gave in all the stock and the fcbe Wilcox farm in his own name, and the two farms in plaintiffs’ mame; and they were so set in the list. This did not appear to have been done With the knowledge or assent of plaintiffs, and could not be considered as any evidence of property. ‘
    13. .That in 1826, Wetherhead gave in all the property on both farms in his own name; but the lists were made of the whole property,real and personal, to Wetherhead and plaintiffs jointly.— It seems the listers did not consider Wetherhead’s list as evidence of his property. And if the list 'of 1825 was evidence, that of 182Ó was also, and did away that of 1825.
    
      As to. the acts of the plaintiffs. 1. That plaintiffs paid the tax on Wetherhead'1 s list of 1825 — saying they did not know upon what it was made. This proves they had no idea it was made on his property. •
    2. On the morning, plaintiffs procured a pair of four-year-old cattle, a pair of three-year-old steers, and four or five yearlings to be driven to Brattleborough. These were shown to have been purchased by the bill of sale of 17th August,1826.
    3. That a few days prior to 17th August, the sheriff had an execution against Wetherhead for about $40,00, and spoke to him near plaintiffs’ house about paying it. The object of this was to infer that plaintiffs were informed of Wetherhead’s being in debt. But alone, it does not tend to prove the fact; and if it did, plaintiffs were also creditors, as appears by the case, and might secure their debt without suit.
    4.' That one of the attaching creditors, in presence of defendant, informed Fessenden they had attached all the property on the. farm, and requested him to designate his — and that he claimed the whole except the waggon and harness. And it did belong to him, and would have been recovered, had not the principle oí fraud in law applied to a part of the case. That he did not recognise the application of this principle, is no evidence of fraud in fact.
    3. The defendant further requested the court to charge, “That if the jury should find some of said property in possession of said Weihhead, to be his property, but so mixed with the property of the plaintiffs that the officer on due enquiry could not distinguish them, the plaintiffs could not maintain an action against-the officer »
    
      ‘From- the case it áppears-'thaí tbe greatest; parí of tbé .property bn the'farms be-* ibngeÜ to the1 plaintiffs — That WetherTiead was not pretended to be ©n as owner of she’land — Thai no application priori to the attachment was made to Holbrook &. JFTes¡senden to learn in what. capacity he was there — -That he was notoriously á bankrupt when be went there — and that he was no connexion) or debtor of plaintiffs, before he went on. From thesefafcts theyinma jftcie 'presufhp.tion was that all the property was TIolhrook?s^ and a creditor attaching) must do it at the peril of doing away this presumption. And the'only way in which it was done, as- to-any part,was by the ’principle of legalfrxmS. This1 put the defendant to prove an actual purchase by Wctherhcdf. But'die principle of emfusidk io.es no£ -apply "to the case. Tbe person wlio puts- his property in confu-siowloses his own- — but in this case it is. contended he ¿hall gain: the whole, ■ The principle of confusion does hot apply to chattels-'which in their nature are easily distinguishable — Neat cattle ara distinguishable by their size, age, colour, and natural marks anil sex. The common'cases are money and grain. Though in onb case, it has been extended to articles of domestic use, where from the riatiire'of the case, and of the use, the goods could not he dis~ , -iinguished — but this case is hot even authority hr a similar case • -here.
    ■ '4. By the charge it was left to the- jury to find what were the contracts between 'plaintiffs imd fVeiherhead — and it roust now be taken that they found them as contended for hy plaintiffs. Anil this is to be kept in view in the investigation of tire whole case. — - And it is not perceived that any objection can be made to the con-"élusion 'drawn from this fact by the charge.
    ’5. The charge refers all the evidence of fraud in, fact to the jury. They do not say that there is no> evidence — but that the court (foes not recollect sufficient evidence of fraud in fací tore-quire remark ; but refers it to the recollection of the .jury, under the definition given ol fraud in fad,as applied' to' this case. Cause's of this kind are beneficial to the laud-owner and tenant; and the ...'Conduct of .parties placed in this situation,when from the necessity •.'of the case,a. mutual confidence must exist, and which precludes U'álling witnesses on every occasion, is not to be unfavorably con-tdtmetk Every transaction which may Jbp honest, is; tos be so. tajeen, 5, s.udji'/f.ud. Is, not to b© presumed. And to find .flumd m fact^ it rqqsfl -appear that tbe plaintifis. “-set op a claim to this property* which really belonged -to, 'SFei^ers^ea^, with fetant- to keep it fcoift bis creditors.” And this the jury have negatived*,
   Hutchinson E

delivered the opinion.‘of th-e court.. The o#r ' ly questions now litigated, upes this long case,, arise, upon. the., charge oí die court to the jury, arid their refusal to charge -as re* quested by the'defendant’s, counsel. The defendant ha-ving attached the.properly in question up.oawñts;again&t Ac Weihw'hap^ the cardinal point in dispute is, whether the property feektbgeddW» the plaiiítífls, or s<a belonged to said, Ah, as tobe liable to attachment for his debts. The facts ¡attempted to- hie proved, otuboih, ¡sides, and which arc necessary -in their character at feast, ,m pje* der to- determine the instructions: to the jury, to which either par- • ty might be entitled, -'appear in the case spread -out at- fell length,. Yet the opinion now to be expressed will- he pndferstood with only q.. concise reference to those facts.

The counsel for the- defendant -contend',, and requested the court to insíract the jury, drat the plahifcfs. 'sho wed no vahé considera* tion for the property-. This-was refused by the court-.

This request vrowld seeto to relato to. tbe. weight ©£ -evidence 5, hut probably it was not so intended.; but- rather that they had. pro* duced ao testimony to show- that they paid -a valid consideration for the property. If by this is meant that property which die plaintiffs purchased of Wefherhead, and drove to BmUMwo\ into their exclusive, possession,, and which was not-attached ¡fey the defendant, and is not sued for in this action, the refusal was correct} for no instruction should, ever be given upon matters for* ■eign to the issue, unless, it he. to lay them wholly out of the .question.

If by this is intended that property which soever was- W^th-mdiead^' but which the plaintiffs placed upon their own- farms in tito, care of Wethwhaad, as their tenant, the refusal was also cor* sect, for it concerns not the defendant, whether the plain tifie paid feg the property* or whether- it was given to them, if it came pot from W^tfierhsad, their debtor 5 and hfe ability to pay- then? was not altered-or affected by it-.,

If by this is intended that property which ever was Wetherhead?s, and which was attached by the defendant, and is embraced in the present suit, the refusal to charge in that precise form •was correct; for more than that, in favor of the defendant,was comprised in that part of the charge which secured to the defendant all the property he had attached, which had ever belonged to Wetherhead; and this, notwithstanding any conveyance by him to the plaintiffs, unless there had been a visible change of possession before the attachment. And here it should be recollected the case shows that none was attached by the defendant which had ever passed from Wetherhead into the possession of the plaintiffs.

■ The defendant also requested the court to instruct the jury, that the acts and doings of the plaintiffs were evidence of fraud against creditors. This was refused by the court.

' • Upon a genera], without a particular, view of the case, this refusal would appear erroneous, because there is testimony of such a character with regard to some of the property in controversy. Yet the defendant is not injured by this refusal; for if such instructions had been given, they would have been applicable only to that property which was secured to the defendant by that part of the charge which pointed out the fraud in law. This probably led to the inaccuracy of expression in the charge. The court, having given the defendant all the property he had attached, that was ever owned by Wetherhead, upon the principle that no sale to the plaintiffs had become complete by a visible change of possession, say they recollect no evidence of fraud in fact that requires any remarks from the court. This would have been incorrect,if applicable to that property which yet remained in possession of Wetherhead, after bills of sale of the same to the plaintiffs'. It’s thus remaining in his possession, and the circumstances of tire bills of sale, and part of the purchase money placed to account, might have been proper to have been left to the jury as evidence of fraud, with regard to that property, if a more direct and sure course, and one sanctioned by the repeated decisions of this court, bad not already taken in favor of the defendant. And surely, after all this, no further remarks were necessary from the court. Yet through fear of some forgetfulness or inattention of the court, line jury were directed to give full weight to any such evidence recollected by .them; and were correctly instructed in what fraud in fact must consist, as applicable to this case, to wit, the plaintiffs getting into their custody, and claiming to own, the property that really belonged to Wetherhead, with intent to keep it from his creditors. It would have been incorrect for the court to have authorized the jury, from any testimony there was before them, to ■find for the defendant, with regard to any of the property claimed-that never did belong to Wetherhead. There was no testimony that the plaintiffs knew of' Wetherhead''s indebtednesss, till a few days prior to their taking home the steers and yearlings, which was shortly before the attachment of the defendant. Their knowledge then seemed only of an execution of about forty dollars. If the defendant, or the creditors of Wetherhead, would claim to hold the property which was transferred from Wetherhead to the plaintiffs, and had gone into the possession of the plaintiffs, their way would have been to have attached that very property, and then disputed the validity of the sale. But that dispute could not arise upon a litigation about other property, which never was owned by Wetherhead. No testimony could avail the defendant to hold,as belonging to Wetherhead, that property put on to the farm by the plaintiffs, which comes short of showing it transferred to Wetherhead, and no pretence of this kind is favored by the testimony in the case. The case of Donoghue vs. Trash, cited by the defendant’s counsel, turned upon the point that the debtor owned the property attached. All the right any others had in it was merely in trust for the debtor.

The defendant further urges thatthe plaintiffs have suffered the property in question to be so mixed with thatof Wetherhead asnotto be distinguished on reasonable enquiry, and, therefore, they have no right to claim it,without first giving notice which was theirs,and making demand. The court refused on request, so to instruct the jury. And this court approve of that refusal. The defendant relies upon the case in 7 Mass. Rep. 123. The doctrine of that case is applicable only to such property as contain no natural or artificial marks by which it can he distinguished. In. that casé, the property was the furniture about the house, where: two.families resided. Grain and goods, m g, store,: generally, if mixed with,others of like kind, cannot be easily distinguished,. But not so ofcattle. They are. not so similar in their appearance as to create uncertainty in, the toinds of those- who have known, them. The defendant might have learnt from those who sold, any of these to, Wciherhea.d Indeed, the same witnesses who would aid him on. trial,, could, direct him before he attached.

Everett, for plaintiffs.

Fkelgs and; J9. Mlhgg,ÍQt defendant,

The. defendant objects to a -part of the charge as consist-; sng of abstract principles, without applying them to the case j and; cites the case of Mason vs. Silver, where such a course is deemed incorrect. This objection is found by reading the charge in detached parts only; when reading the whplp, removes the difficulty. Allusion is made to the designation of the fraud in law : but the observations upon that head are. immediately applied, and the property named, which the, jury might probably 'consider within that'principle.

The defendant urges the hardship that the creditors should lose their debts against W'etherkead. Possibly there may be some other remedy in case of any equity. During t,he years that Wdherhead hired the farms at a given rent, there is no more, equity against the plaintiffs than against any other persons, During the years in which Wetharhead was a hired man of the plain- : tiffs, as they themselves avow, possibly they might be hpld'en to pay for the salt to give the cattle on the farm, and perhaps other ■ things of that character. Of this, however, we risk no opinion.— The circumstances of such claims but partially appear on the trial, of this cause.

Upon the whole, the Court consider the verdict correct, in reference to the facts disclosed in the case, and no correct charge would produce a different verdict. The judgment of the County ‘Court is affirmed with cpst.  