The instruction to the effect that if the sale was understood between the parties to be only a mortgage, then there was a secret trust within the meaning of the Statute of Frauds, and *328the sale was therefore void as to creditors, is clearly erroneous. The first instruction discussed in the opinion of the Chief Justice is, I think, as an-abstract legal proposition, correct. For, if Kraft remained in the “actual” possession as the hired man of his vendee, such possession would “ be conclusive evidence of fraud, as against the creditors,” even though such actual possession would be constructively the possession of liis employer. But if other parties were placed in the store, having the direct charge and entire supervision and control of the goods, and Kraft was only employed in a subordinate capacity to assist in the sale of the goods, in the presence and under the immediate supervision and control of others, this relation would not necessarily constitute an actual possession in Kraft within the meaning of the Act. There is evidence tending to show that this was the relation that Kraft sustained. In view of the state of the evidence, the instruction required some qualification or explanation, otherwise the jury would be liable to be misled by it. The judgment should be reversed and a new trial had.