By the Court,
Cowen, J.It makes no difference that the debt to the defendants was contracted after the first bill of sale. The keeping of such a transaction on foot has a direct tendency to defraud the vendor’s subsequent creditors, for they give him credit on account of the very goods which are left in his possession. The statute declares such a transfer, without change of possession, conclusively void *184a§a*nst creditors, present or subsequent, unless it be explained and shown to be bona fide. 2 R. S. 70, § 5, 6. The evidence to explain in this case rather went to strengthen the charge of fraud. The articles sold amounted to much more in value than all West owed the plaintiffs. No lawful excuse was shown for not changing the possession ; and both,bills of sale seem to have been kept on foot for a long time, absolute as they were, but with an intent to cover and secure a fluctuating balance of account due to the plaintiffs in a course of trade between them and West. How near this at any time reached the value of the property does not appear. West was poor, and finally appears to have run considerably in debt. In short, this is plainly the too common case of covering a poor man’s valuables, perhaps all but what he holds exempt from execution, and hiding them from his creditors. West did not pretend that he was not indebted to others when he sold the colt. Even this poor excuse, directly .as it is in the teeth of the statute, § 6, does not apply here. But it is enough that the unexplained possession after sale, for so long a time, accompanied too as it was by many claims and acts of ownership on the part of West, not only as to the property in question but the other articles (for there were others) included in the first bill of sale, stamp this transaction as conclusively fraudulent within the express provisions of the statute.
The judge certainly laid down very sound principles of decision to the jury, which they have disregarded. We think he should have directed them, as matter of law, to find for the defendants. I know the statute declares in another place, Id. 72, § 4, that a question of fraudulent intent is one oí fact and not of law. But surely that must be confined to cases where the question of intent is open, and cannot extend to acts which the same statute has declared shall be deemed conclusively fraudulent, unless explained. When the court sees that such acts conspire, and that there is not the semblance of explanation, this makes a question of law ; and the statute should be so read, if possible that one part shall not repeal the other. There, are many cases where possession is changed, which it is necessary that the *185jury should decide. The statute intended that class of cases, and should be qualified and confined to them. The statute is the same as if it had said the jury shall judge of the fraudulent intent, except in a case of unexplained possession after a sale or mortgage of personal property. If this be not so, such a possession is not conclusive, and one part of the statute would repeal the other. Nor can it be said that the jury are to judge of such a case because it is not possession alone which makes the fraud, but possession without explanation ; and they are to judge whether there be any explanation. Such a case may be presented, but it does not follow of course. If there be circumstances admissible and tending to rebut the presumption of fraud, the court will submit the question to the jury; but it does not follow that any thing and every thing is to be received as evidence for that purpose. If a single circumstance or a consecutive series of circumstances be proposed by counsel as evidence, and the court does not think it relevant or tending to overcome the presumption, it should, as in other cases, be excluded ; or if, being received, it falls short of competent evidence, the court may, as in other cases, tell the jury to disregard it. Doane v. Eddy, 16 Wendell, 522. A fortiori, if, as in the case before us, it goes to strengthen the presumption of fraud. Courts are to see that the statute is executed. In case of a sale nakedly fraudulent within its very words, if á jury will find that such a sale is honest, we must grant a new trial. It is our duty to do so, unless we submit that the statute shall be overruled. The rule is without exception, that where the evidence is so decisive as to call for a new trial on the jury finding against it, the judge may direct them at the trial, as matter of law to follow it. The case is no longer to be put to them as hypothetical, that on their finding the facts to be so and so, the legal inference of fraud follows. The possession being shown and nothing lawfully explaining it, the judge seeing this, is as much bound to direct a verdict in favor of the creditor who alleges the fraud, as he would be to declare and charge that a deed duly acknowledged or otherwise proved passes a title. The deed may be impeached, but until it is so the jury are not to disregard its effect, *186as declared by the statute or common law. It were absurd to say that one rule shall govern the judge at the circuit and another the judges on this bench ; and yet no one, surely, contend that because the jury have found against both the law and the fact, as declared too by a statute, that we are therefore bound to follow and fix our seals to these corrupt bills of sale.
It appears to me not only erroneous but direspectful, to suppose that the legislature ever intended to impose such an humiliating office upon the courts. They have taken great pains to declare that certain facts shall be considered in law full proof of fraud. They have selected such as all the world have agreed on for infallible indicia, ever since Twyne's case in the reign of Queen Elizabeth. They have enlarged and strengthened the rule by applying it to mortgages as well as bills of sale. Let it not be supposed that in the same breath they have committed the execution of such a statute exclusively to a jury, a thing which no legislature ever before thought of, even in matters of the most inconsiderable consequence. When properly construed, I think the statute has run into no such strange anomaly ; and. that therefore, in this case there must be a new trial, the costs to abide the event.
New trial granted, costs to abide the event. -