delivered the opinion of the court, February 19th 1877.
There were substantially only two issues of fact before the jury. First, whether the general assignment by the Laufertys to Gans, dated September 22d 1871, was delivered on that day; and, second, whether it ivas intended to hinder, delay and defraud Peet, a creditor of the Laufertys. No point was made below, nor has any assignment of error been filed which raises the question whether there was sufficient evidence of actual fraud to submit to the jury. We must assume that there was. If so, we see no error in the admission by the learned judge as to the manner in which the sale by the assignee was conducted, the prices brought, and that the goods were bid in for a son of one of the assignors. It certainly had a direct bearing on the question of fraud, though it might be insufficient of itself to prove it. If no subsequent or further evidence was given on this point, the judge should have been asked so to charge. No man can be required to prove his case uno flatu. He must proceed . by steps, and especially is this true in questions of fraud. Whether he begins at one end or the other, or jumps at once in medias res, is a mere question of order on which we never reverse. If, therefore, the evidence offered had any bearing upon the question of fraud, it would have been error to have excluded it. The court could not be called upon to say, at that stage of the trial, whether, standing by itself without any further evidence, it was sufficient to go to the jury. Nor do we find any error in that part of the charge complained of in the second. specification. The subsequent proceedings in bankruptcy had no relevancy to the issue before the jury. They neither tended to prove that the deed was delivered on the day of its date, nor that it was not in fraud of creditors. But in that part of the charge which forms the subject of the third specification we think there was material error. The fraudulent sale by the assignee had no bearing upon the bare question of the delivery of the assignment. The sale went to show that it had been delivered at some time, which, however, was not denied, but that it had not been delivered before Beet’s execution was placed in the hands of the sheriff. Surely the fraud or irregularities in conducting the sale threw no light whatever properly upon that question ; yet the learned judge instructed the jury to “mark especially” that it did so bear, though he did not explain how or why. We think this instruction was calculated to mislead the jury, and the third assignment of error is therefore sustained.
Judgment reversed, and venire facias de novo awarded; ■