— The learned and elaborate opinion of Chief Justice Willes, in the case of Omichund v. Barker, Willes’ Rep. 538 is the text generally resorted to on this interesting subject. The question in that case was, whether an East Indian, professing the Gentoo religion, who had given evidence on a commission issuing out of Chancery, who had been sworn according to the custom of his religion, was a competent witness
The learned Judge proceeds to show, that the substance of an oath had nothing to do with Christianity — that oaths were more ancient than the Christian feligion, and successfully combats the notion of Lord Coke, that an infidel could not be a witness. He expressly lays down the doctrine, “that an infidel, who believes in a God, and that he will reward and punish him in this world, but does not believe a future state may be examined on his oath.”
In the case of Butts v. Swartwout, 2 Cowen’s Rep. 431, a witness professing the same religious belief the witness in this case appears to entertain, was held to be a competent witness. Indeed, if we consider the source of the obligation of an oath, it appears strange that the question should be raised in this enlightened age of the world. An oath is a solemn adjuration to God, to punish the affiant if he swears falsely. The sanction of the oath is a belief, that the Supreme Being will punish' *356falsehood; and whether that punishment is administered by remorse of conscience, or in any other mode in this world, or is reserved for the future state of being, cannot affect the question, as the sum of the matter is a belief, that God is the avenger of falsehood; see also 15 Mass. Rep. 184.
The question arising on the charge of the Court, is of the utmost importance to the community; and it is but mere justice to the people of the State, that the question should be put on such a footing, that it can be understood and acted on with safety.
Previous to the decision of this Court, in the case of Hobbs v. Bibb, 1 Stewt. Rep. 54, the question was in doubt, the Judges on the Circuits many of them holding the doctrine of the case of Hamilton and Russel, 1 Cranch 309; which is, that, when possession remains with the grantor after an absolute sale of personal property, it was conclusive evidence of fraud, or as it was termed fraud per se; whilst others held that such a state of facts only created a presumption of fraud, which the party affected by it, might repel by showing that the transaction was fair and bona fide. To this effect was the decision Of this Court in the case of Hobbs v. Bibb.
Some time afterwards, the case of Ayers v. Moore came under consideration. [2 Stewart 336.] In that case a supposed distinction was engrafted on the case of Bibb v. Hobbs, which however, did not, in my opinion, substantially change its character. . In the last case, the question at nisi prius had been put on the ground alone of the bona fides of the transaction; and the Court held that, although the consideration was bona fide and paid, yet it might have been done to delay or hinder creditors, therefore the ground assumed on the Circuit was too narrow. Although I am unable to perceive how a transaction could be bona fide, and yet made with the design of enabling a debtor to delay or hinder his creditors, yet I have no objection, that this should be considered the test. Upon this footing, the law asl understand it, has remained ever since in this State.
The rule as laid down in the case of Hamilton v. Russel, is an. artificial and purely arbitrary distinction, which declares that the existence of certain facts shall be conclusive evidence *357of a fraudulent intent; and its necessity is supposed to rest on public policy. The opposite doctrine, and such as I understand to be the settled law of this State is, that no transaction shall be considered fraudulent, which is not so in point of fact', and supposes the ability in Courts and Juries to eviscerate the truth of the case, and determine whether a transaction be fraudulent or not. Where the former rule imputes fraud from the existence of certain facts, so conclusively as not to admit of contradiction — the latter holds it to be a badge of fraud merely, and requires the party affected by the presumption thus raised, to prove that the transaction is fair and honest..
The question is not now, which of these rules is preferable as a mean of administering justice; but whether it is wise to clog the rule we have adopted by engrafting on it nice and almost insensible distinctions, the inevitable tendency of which would be to embarrass the administration of justice, and to entrap the unwary.
• The charge in this case was, if the transaction and sale was upon a fair and sufficient consideration, ■was bona fide and not intended to delay and hinder creditors, it should be supported. This is, in my opinion, a sound exposition of the rule, that possession remaining with the vendor, after an absolute sale of personal property, is a badge of fraud, devolving on the party the necessity of showing that the transaction is honest, and that a sufficient consideration has been paid for it. By so doing, the apparent incongruity of the ownership not being with the possession is explained; and certainly the plaintiff has no claim on the principlés of justice, to have his execution satisfied out of property, which does not belong to the defendant in execution. Should the property be suffered to remain so long, that the possessor acquired a delusive credit from the apparent ownership after such sale, another question depending on different principles would arise, which it is not necessary to determine at this time.
Let the judgment be affirmed.