delivered the opinion of the Court.
[ Several points were made at the trial, on which the Court was requested to give specific charges to the jury. The principal question, however, arose upon the construction of our statute, relative to fraudulent conveyances and contracts. R. S. 331, § 6; Id. 332, § 4.
It was insisted on the part of the plaintiff in error, that proof of a want of change of possession of the goods turned out or assigned by way of security, was not merely evidence of fraud, to be submitted to the jury, but, unless satisfactorily explained, absolutely established the fraud; and that, under the first clause of the sixth section of the act referred to, that question was to be determined by the Court, as a matter of law.
It was also insisted that the presumption of fraud arising from a want of change of possession, after the sale or asr signment, was not rebutted by proof of good faith, and absence of an intent to defraud creditors. But the Circuit Court held, and so charged the jury, “ that the ques*524tion of fraudulent intent, in relation to said transfer, was one of fact for the jury ; that they were to decide from all the facts in the case, whether the plaintiff (below) had sufficiently explained the want of possession in himself; that his want of possession was prima facie evidence against him, and conclusive, unless explained; and that they were to determine as to the sufficiency of the explanation, as well as to whether the transfer was made in good faith, or with intent to defraud,” &c.
The question here presented is one of great practical importance, and should receive the most careful and deliberate consideration of this Court, were it regarded as an open one; but, since the enactment of the Revised Statutes, it has often been discussed and decided, in the several circuits, where, it is believed, entire uniformity of decision has prevailed ; and this Court held, in the case of Stowell v. Walker,* decided here at the last January term, that the question of fraud, arising from a want of delivery and a continued change of possession, of goods sold or assigned by way of security, was, under our statute, one of fact for the jury.
The same question has also been repeatedly.agitated in the courts of New York. Our statute is a literal copy of the statute of New York; and, although it received from the Supreme Court of that state, a different construction from the one we have given to it, yet their court of last resort have steadily held, since the decision of Smith & Hoe v. Acker, 23 Wend. R. 653, that fraud, under the statute, was a question of fact for the jury, and not an inference of law to be decided by the court; and, in the case of Hanford v. Artcher, 4 Hill, 271, decided by the *525Court of Errors, so late as 1842, the whole doctrine, bearing directly or remotely on the construction to be given to the statute in question, is thoroughly sifted, and all the cases, ancient and modern, English and American, are referred to and reviewed.
Lieutenant Governor Bradish, then presiding in that tribunal, in a most elaborate opinion, declares the effect of the statute thus : “In general, this statute, upon due examination and a fair interpretation, will, I think, be found to have accomplished the following important objects, and thus put to rest the vexatious questions long agitated in regard to them, viz:
“1. It has abolished the distinction sometimes attempted to be drawn between absolute sales and conditional assignments, and thus avoided the question whether continued possession in the vendor or assignor be consistent or inconsistent with the deed.
- “ 2. It declares what shall rebut the evidence of fraud raised by the statute from a want of change of possession, viz: good faith and absence of intent to defraud.
“ 3. It throws the burden of proof of such good faith and absence of intent to defraud, upon the party claiming under the sale or assignment. It declares the question of fraudulent intent, to be a question offact, and not of law.”
This we recognize as a correct construction of our own statute. The ruling of the Court below in the case under review, in no wise conflicts with it, and is also in accordance with the decision of this Court, in Stowell v. Walker, before referred to.
2. Another point raised and relied upon, was, that the plaintiff below could not recover without having first demanded of the defendant a return of the goods. We think, however, the Court below decided correctly, that no demand and refusal, need be proved. By the contract relied upon by the defendant, and which the verdict of the *526jury shows to have been proved to their satisfaction, he acquired an immediate right'of possession. The goods were left with Love for the time being, as a matter of temporary convenience to the parties, but Dean might have removed them at any time, with or without the permission of Love.
Love’s possession, then, was Dean’s possession, and the taking and carrying away the property, by the plaintiff, was as much a trespass upon the defendant’s right, as though it had been taken from his personal custody.
Several minor questions were raised at the trial, and again urged on the argument in this Court, but we think they were all properly decided by the Circuit Court, and require no notice or discussion here.
We are clearly- of opinion, that the judgment of the Court below, should be affirmed, with costs.
Judgment affirmed.
The only point of importance decided by the case of Stowell v. Walker, is the one which it is here cited to sustain, and, as it was a much less direct and satisfactory authority upon this point, than the present case, it was not deemed advisable to report it among the cases of the last January term.