The opinion of the Court was delivered by
Skinner, Ch. J.From the record we learn, that Pierson was the former owner of the swine, for the taking and conversión of which this action was brought. Mahoney, (the plaintiff below), relied on showing in evidence, a purchase by himself, of Pierson — Durkee, (the defendant below), contended, that the plaintiff ,had failed in proving that adequate consideration, required by law, to make the sale valid, against the creditors of ■Pierson; and also, that if the sale had been otherwise valid, there was not that evidence of a transfer of the possession, which would protect the property from attachment by Pierson’s creditors : and the Court were requested to charge the jury, upon the law applicable to these points in the case.
To constitute a valid sale against creditors, it is necessary that there should not only be a valuable, but an adequate consideration : and also, that there should be a change of possession. A want of such consideration, will render the sale void, notwithstanding a transfer of the possession.
■ Although a full and adequate consideration is proved to have been paid; yet, if the charge, use, and possession, remain as before, with the-vendor, the law presumes the sale to be merely colourable, made to avoid the debts of the vendor, and not bona *120fl^e' Admitting the possession of the swine to have been in Mahoney, at the time of the attachment by Durkee, the circumstances of Pierson, i. e. his ability to pay his debts, without the aid of this property, is material — for a transfer of property,. without any valuable consideration, is good, even against creditors, the vendor retaining estate amply sufficient to supply his necessities, and satisfy his creditors. On this point it seems no question was made; and it is presumed the insolvency of Pier-son was, as we now understand it to be, admitted.
It is insisted, that if from the record, the Court should be of opinion, that the weight of testimony was opposed to the finding of the jury; for this cause, judgment is not to be reversed. This is correct; nor would it be the duty of the Court 'to reverse a judgment, if from the record in the case, it appears that the verdict is right, although the judge may have erred in the charge; as, where facts sufficient to sustain the verdict, are admitted, or where the point was not material. As a correct charge would have produced the same result, to set aside the judgment, would be to trifle with the administration of justice. But where the question is, as in this case, whether the testimony given amounts to proof of such facts, as are necessary to entitle the party to a verdict, it is the duty of the judge, not only to instruct the jury in the law, and also the facts they are to find, but particularly to point out what testimony will constitute the proper evidence of such facts. From the record it appears, that the jury were instructed generally, that the sale was valid, if they found it to have been bona fide, and for a valuable consideration ; and that the plaintiff took possession before the attachment. From this charge the jury were at liberty to consider the possession of the plaintiff sufficient, from the evidence given of the acts of the parties, at the time of the sale, although they should believe the possession to have been in Pierson, at the time of the attachment.
It was the duty of the judge to have explained to the jury, what facts were necessary to constitute a bona fide sale, and what was a valuable consideration. The jury, were at liberty, front this charge, to take the declarations of the parties as conclusive evidence of the sale’s having been bona fide: and a valuable consideration, however trifling and inadequate, would have justified a verdict for the plaintiff, under the charge. The vague testimony of Moulton, about the notes, and the declarations of the parties, as to the prior services of Mahoney, ought not to have been suffered to go to the jury, as competent and sufficient proof of the facts, necessary for the plaintiff to show in the case. Indeed, the only consideration proved, was the two months’ labour: and this, though a valuable consideration, was not, even in the opinion of the plaintiff, adequate and sufficient to protect him in the purchase. Twenty-four swine, valued at ninety-six dollars, are attempted to be transferred from Pierson, who is in embarrassed circumstances, to his hired man, Mahoney, who has laboured for him two months. The swine *121continue upon the premises of Pierson, and are fed at his distillery. No certain price is agreed upon for the keeping — no account or charge is made of the property transferred, or receipt given therefor. We believe the record presents a case of a sale fraudulent in point of fact, and that the verdict would have been for the defendant, if the jury had been rightly instructed. At any rate, as it is uncertain, what facts the jury considered necessary, to entitle the plaintiff to a verdict, or what would have justified the defendant, in taking the property,
Wm. Brayton, attorney for the plaintiff in error. Chas. Adams, attorney for the defendant in error.The judgment must be reversed.