in substance charged the jury.
This action is brought to recover the price of a quantity of pork alleged to have been sold and delivered by plaintiffs to defendants.
As evidence of the bargain and sale, plaintiffs have produced and proven the written contract of February 25,1857, between the parties, in which is specified two hundred barrels of mess- pork, to arrive on the ship John Milton, at $3110. Defendants to receive it at ship’s tacHes, when ready for delivery from said ship, and pay for it in thirty days from delivery. And as further evidence, plaintiffs have proven the delivery order of May 8, 1857, from D, L. Ross & Co., on the commander of the ship John Milton, for two hundred barrels of pork, which is endorsed by plaintiffs to defendants, and by them in blank. It is proven that the ship John Milton arrived here about the 6th of May, and that D. L. Ross & Co. were the consignees; that the delivery order was presented to the clerk of the ship about the 14th of May, by Mr. Teller, who then held it, the pork having been transferred to him as collateral security for money loaned, and one hundred and eighty-seven barrels of it went into the warehouse of AIsop & Co., on account of Teller, and the balance being in bad condition, went to the store of the defendants. The ship commenced discharging about the 8th of May, and finished, about the 27th of the same month. The delivery of these goods commenced on the 13th, and continued to the 16th of May, when all were delivered, and received under the order mentioned, excepting two barrels, which were received on the 19th of May. It does not appear that delivery was either claimed or refused at any time pri- or to the day it was made, or that any lien or claim against the goods was made or existed after the delivery order was given.
*302They were in the hands of the carrier, having arrived here about the 6th of May, and upon the order being presented to him, he accepted it, and on the same day commenced the delivery. Previous to this the title to the goods had been transferred, and after the carrier attorned to the order, he became the bailee of the owner of the goods, and ceased to be the bailee of the seller. Nothing remained to be done by the seller tó complete the sale or delivery.
Ordinarily, upon the sale oi goods, when they are in the hands of a third party, as keeper, and nothing remains to be done to ascertain the price quantity, quality, or individuality, the sale and delivery is coihplete upon the giving of a delivery order upon the third party, and an acceptance and readiness, and ability on his part to comply with it.
Now it is claimed by defendants that they had the whole of the 18th of June, the day of the failure, and the day this suit was instituted, for payment, as that was the 30th day after the receipt of the two hundred barrels, on the 19th of May. But if you find the testimony as I have stated, I instruct you that the delivery was complete thirty days before this action was instituted, and that it was not prematurely brought.
It remains for you to determine the amount due, which, in this case, there being no reclamation, is a mere matter of calculation.
The next, and more important, issue for you to pass upon, is, have the defendants, as alleged, removed or disposed of their property, with intent to defraud their creditors, and among them these plaintiffs ? The constitution of this State abolishes imprisonment for debt, except in cases of fraud. Under this provision of the constitution the legislar ture have passed certain laws, authorizing arrests in specified cases ; or rather, it is defined by statute what facts shall be established by affidavits, in order to have a defendant arrested on the ground of fraud.
Among others it is provided that, when the debtor has removed or disposed of his property, with the intent to defraud his creditors, he may he arrested. The defendants having been arrested'in this action, this question of fraud is submitted to you to be" passed upon, to ascertain whether the judgment, if any there be, shall be enforced against the bodies of defendants.
It may be important to give you some instructions as to the legal meaning of fraud. At common law fraud is divided into positive, or *303actual fraud, and what is termed constructive fraud. Positive fraud is defined to be the intentional and successful employment of any cunning, deception, or artifice, used to circumvent, cheat, or defraud another. By constructive frauds is meant such an act, which, though not originating in any evil design, or contrivance to perpetrate a positive fraud, or injury, upon other persons, yet, by its tendency to mislead or deceive them, or to violate public or private confidence, or some special trust; or to injure the public interests, or to operate substantially as a fraud upon private rights, interests, duties, or intentions, is deemed reprehensible, like positive fraud, and therefore prohibited by law. Now, under our insolvent laws, as interpreted by th§ Supreme Court, any assignment made by an insolvent debtor, contrary to its provisions, is declared yoid.
An insolvent may make an assignment, in order ■ to prefer certain creditors, which, if it contravenes the insolvent law, may be void; yet he may have acted in good faith, and with no intent to defraud his creditors, and may not, by reason of that act alone, commit a fraud which would .render Mm liable to an arrest. In other words, he may do an unlawful or void act, without committing a fraud within the meaning of fraud, as defined by statute, under the provisions of the constitution referred to. So a person may make a sale of personal property, without a delivery, or change of the possession, which is, by law, declared void, as to creditors, and yet it may be done in good faith, on the part of the buyer and seller, and without fraud. The intent Of the party is the material thing to be ascertained.
If a debtor disposes of his property in good faith, with no intent to defraud, the contract may be illegal, or void, yet he may not render himself amenable to our statutes authorising arrests.
The court then referred to the facts and circumstances in,evidence, relied upon as badges, or indicias of fraud, and explained to the jury that it was their province to pass upon them, and ascertain whether or no they were satisfactorily explained by the testimony; that it was for them to determine the intent with which defendants had acted. Were the acts relied upon as evidence of fraud, for instance, the disposition of a portion of their property, done in good faith,"with honest intentions, to protect, secure, or pay certain creditors, or for the purpose of *304committing a positive, or constructive fraud, as I have defined these, and to defraud their creditors, and among them these defendants ?
How, in coming to a conclusion on these important questions, and in carefully weighing and considering the very voluminous testimony which has been adduced, you must remember that it is not an easy matter, in all cases, to prove actual frauds even if it has been committed. It is not a fact of itself that can be established by positive or direct evidence—-a thing that witnesses can come forward and swear to, as they can to an actual, material occurrence, which is an object of the senses. Fraud is an intention—-a purpose—a thought—perhaps not avowed, hut concealed, within the secret recesses of the heart. It is rather to be inferred from acts, conduct, and circumstances, than proven as a fact. Witnesses can lay before you facts, conduct, and circumstances ; they may be of the opinion that they constitute fraud, but you may come to a different conclusion. Fraud is a conclusion tha,t it is always painful to drawr. In a commercial community, from habit and custom, credit seems to be necessary to its existence and prosperity, and good faith is an essential element of credit; a charge of this nature, preferred against prominent merchants, men who, you have been told, stood in the very first rank in regard to their credit, capacity, and extensive business transactions, merits at your hands the most attentive consideration, and patient investigation; this is due to the defendants, whose characters and reputations are involved, and to the creditors and the mercantile community, whose interests may be affected.
In regard to the facto of the case, you are the sole judges; you may credit or discredit tésfcimony as your judgment of its value, and your estimation of the witnesses, may dictate. If you find the positive testimony contradictory, and are unable to harmonize it, you can take into consideration the testimony as to circumstances and presumptions, and find as the weight of evidence may preponderate, and according to the reasonable probability of truth. It is sufficient, as a general rale, if the evidence on the whole supports the hypothesis which it is adduced to prove—-and this applies to the defendants as well as the plaintiffs.
In deciding'upon the important issues submitted to you, and in the performance of your duties, in arriving at a correct conclusion, you should be guided solely by the testimony. Personal feelings, impren. *305□ions received outside the evidence, or the judgment that Mows y©mr verdict, job, should not allow to iaSuenee jour minds, or to bs taken Into consideration. Yours is a duty, of itself, to sender a feme verdict, as your oath runs, according to evidence, and it matters mot who may he the parties to be affected, or what relations you bear to them, what may be the consequences of your verdict to either piamtihl or defendants, or what you may have heard or read, either la favor of or against defendants; you should banish all such considerations from yoar minds, and pronounce solely upon the testimony, fairly and honestly, according to the dictates ©f your consciences, If jurera act otherwise, and permit private feeling, or outside rumor, to sway or control them, in Ending a verdict, w@ might as wel abrogate all laws, and close ©sir courts of justice.
The jury gave a verdict in fever of plaintiffs for !«8,80©, and In reply to the question, have the defendants, as alleged, removed nmd disposed of their property, with intent to defraud their creditor, and the plninfiSs among them V they returned an aflrmfe answer.