The facts, stated in the case, disclose the grounds, on which the plaintiff claimed a lien upon the goods ⅛ question. It is contended, by the defendant, that the lien so claimed, is fraudulent, as against the creditors of Inness & Co. And it is further contended, that the questic of fraud, was not properly submitted to the jury. It is, 11 apparent, that the questions put to the jury, and the ans\ *429which has been given to them, by the verdict, effectually repel any pretence of actual fraud; and that if the transaction. is fraudulent, it is so, by construction only: For under the charge, t lie jury must have found, that the plaintiff was the
factor or agent, and not the mere clerk of George Inness & Co.; that the liabilities, under which he lay, were assumed upon the credit of funds in his hands, and that, under an agree-merit, entered into bona fide, and not with an intent to deceive or defraud creditors.
Whether a transaction be, or be not fraudulent, is always a question of fast for the consideration of the jury. This is too well settled to admit of dispute. This being so, it is difficult to see how this case could have been ¡oft to the jury, in a manner more favourable to the defendant.
It is, however, contended, that the jury should have been charged, that if they should find, that the store, where the goods were deposited, was rented by Inness & Co. ; that a sign with their names, was over the door of the same, and they thus held out to the world as the owners of the goods; the verdict must be for the defendant; these facts furnishing con-elusive evidence of fraud.
It seems to me, that to have put the case, in this manner, to the jury, would have been to withdraw the question of fraud entirely from their consideration. For how can it be said, that the question of fraud is left to the jury, when they are told, that these circumstances are not merely badges of fraud, but conclusive upon the question ?
The circumstances above alluded to, may have been properly taken into consideration, by the jury, for the purpose of determining what was the character of the plaintiff’s agency; whether the agreement claimed, was ever made ; and if so, whether it was fraudulent, as against creditors. — But there is no authority for saying, that these circumstances were con-elusive upon the question of fraud, and that the jury had nothing to do but to determine their existence.
But after all, what is there in the facts, so strongly insisted upon, from which even a presumption of fraud can be raised ? It is said, that Inness & Co. were held out to the world as the owners of the goods; and that they were thus enabled to gain delusive credit. True, they were held out as the owners; and such, precisely, was the fact. And this fact is entirely *430consistent with the claim now made by the plaintiff. His claim of alien proceeds on the ground that Inness & Co. are still the owners; and these goods are yet open to the demands of creditors, they discharging the plaintiff’s lien.
The question is, whether by representing Inness & Co. as the owners, the plaintiff thereby declared to the world, that he had no lien upon the goods ? The argument seems to assume this, and to proceed upon the idea, that by disclosing his principal, the plaintiff has precluded himself from making the present claim. Can there be any foundation for this supposition? If it be well founded, it follows, that in every case, where- a factor discloses his principal, he thereby abandons his claim .to a lien.
Again: It has been contended, that as Inness & Co. rented the store, in¡which,the goods were deposited, they had the possession of the goods ; and therefore, there can be no claim for alien.
The facts found in the case, conclusively show, that there is not the least foundation for this objection: For, it is founds that the goods were shipped to the plaintiff, to be sold; and that there was.an agreement, that he should have a lien on the goods in his hands for the amount of his acceptances.
I am of opinion, that there is no just ground of exception to the charge ; and that the rule must be discharged.
The other Judges were of the same opinion.New trial not to be granted.