This court will not set aside a verdict as against evidence, unless the mistake of the jury is very manifest.
In this case, the judge charged, correctly, that, on failure of the firm, an appropriation of the joint property, by one partner, to pay his individual debt, would be fraudulent and void as against the partnership creditors.
That the horse in question was the property of the firm, and that they had become insolvent, was admitted. Whether the sale claimed by the plaintiff, if made at all, was void as being within this rule, was submitted, as a question of fact, to the jury.
As the only evidence that any debt at all was due to the plaintiff, proved it to be the debt of Edwin R. Yale, and not *191of the co-partnership; and as the testimony that the defendant was the creditor of the firm, and, as such, took a bill of. sale of the horse, seems not to be questioned, — it was the duty of the jury to return a verdict for the defendant, unless they found that he had assented to the sale to the plaintiff, with knowledge that she was to apply it on a claim against one partner only. Of such knowledge there is no evidence. He knew that she received the horse to be applied upon a debt; but there is no testimony conducing to prove, that he knew it was a debt against one only of the firm. There was, therefore, no testimony to shew, that he had waived his right, as a creditor, to avoid the sale. On this ground, the jury should have returned a verdict for the defendant.
But did the plaintiff ever agree to the terms of the contract, or accept the bill of sale ? She said nothing, when it was left at her house. She took the horse into her possession, and used him occasionally. This act was equivocal; but would seem, if unaccompanied by other circumstances, to shew her assent to the contract. Her possession, however, was attended with declarations from time to time, shewing, that she took the horse on trial, and not as her property. Soon after he was left with her, instead of consenting to keep him, and indorse the price upon her note, she repeatedly declared, that she had not made the indorsement, and never would ; and expressed her determination not to take either horse, unless she could have the other, which she preferred. This refusal to accept the horse she continued to repeat, from time to time, until the sale was made to the defendant. The testimony of Edwin R. Yale and William C. Boon is not contradicted, but corroborated, by other witnesses. They fully prove, that the plaintiff never consented to receive the horse at the price required, but perseveringly rejected the proposal.
On both these grounds, we consider the verdict as against the evidence, and would advise a new trial.
In this opinion the other Judges concurred.
New trial to be granted.