dissenting.
This cause comes here from Saline county. The action in tho court below was brought by the defendant in error to recover damages for an alleged wrongful seizure by the plaintiff in error of a portion of his stock of goods under an order of attachment.
The order of attachment was issued to the plaintiff in error, as sheriff, at the suit of Samuel P. Farmington et al. v. Francis M. Woodruff, who a short time before had been engaged in the mercantile business in Friendville, in said county, and from whom the defendant in error had, mediately, obtained the goods in question. The intervening purchaser from "Woodruff was J. D. Stone, who was one of his creditors. The defendant in error was in possession of the goods when the attachment was levied, and he *291claimed to own tbem under a sale from Stone. The defense interposed was that the defendant’s title had been obtained in fraud of Woodruff’s creditors, and that the goods were, therefore attachable, as belonging to.him, in satisfaction of their demands. The jury, however, found otherwise, and judgment was rendered accordingly. The only question for present consideration is simply whether the verdict is supported by the evidence.
If we were dealing only with the sale from Woodruff to Stone, if the verdict rested on that alone, it is quite probable it could not be sustained. For although Stone doubtless had for one object, in making the purchase, the payment of his own small demand against Woodruff, I think the evidence shows beyond all reasonable doubt that he had the further object of unjustly benefiting himself at the expense of Woodruffs creditors, by getting his stock of goods for several hundred dollars less than they were really worth, and to that extent, if not altogether, defeat them in the collection of their claims. These claims were pressing upon Woodruff, and Stone knew it; they amounted to about four thousand dollars. The goods transferred to Stone, as Woodruff testified, were worth about thirty-eight hundred dollars, and the book accounts about one thousand dollars more. Stone paid for them both two thousand dollars by the satisfaction of his own demand of about three hundred dollars, and his four promissory notes, three for five hundred dollars each, payable in six, twelve, and eighteen months, and one for about two hundred dollars, payable in two years without interest. This was clearly a fraudulent transaction, and voidable at the suit of Wood-ruff’s creditors.
But was the defendant in error aware of the fraudulent character of Stone’s title when he took it? In other words, did he know that one of Stone’s objects in buying the stock was to defeat, hinder, or delay Woodruff’s creditors in the collection of their claims? Or rather, as the question is *292presented to this court, can the refusal of the jury to so find on the evidence before them be sustained? I think it can and should be.
It is a principle of universal recognition that in the absence of proof fraud is never to be presumed. Therefore, if the right of a party in a suit depends upon the establishment of fraud in another, he must prove it in order to succeed. The burden of proof is on him whose success depends on showing the fraud. Clark et al. v. Tennant, 5 Neb., 549. 3 Wait’s Actions and Defenses, 445, § 12.
Such being the law by which the case is to be judged, what is the evidence to which it is to be applied? Conceding that Stone was a fraudulent purchaser, all that was shown beyond this was simply that the defendant in error had resided in Friendville about one year before he purchased the goods, during which time he had been in the employ of Stone or his' son, running a flour and feed store at sixteen dollars per month and board. Before going to Friendville he had lived in Hamilton county about three years, working in his brother’s mill. This is all that was shown of Starkey’s antecedents, and nothing whatever as to his financial ability or standing.
Stone, after his purchase from Woodruff, had run the store about twenty days when he proposed to sell out to Starkey. He had endeavored to sell to other parties. Finally Starkey concluded to purchase on the terms offered him, which were the payment of twenty-five hundred dollars for the stock then on hand, for which he gave his promissory notes payable in six, 'twelve, eighteen, and twenty-four months, all except the first being without interest. This sale was completed and Starkey in possession of the goods before the attachment was levied. It is not shown that before the levy of this attachment Starkey knew or had reason to believe that Woodruff was in embarrassed circumstances, or even that he had a single creditor in the world. The stock so purchased by Starkey invoiced be*293tween twenty-seven, and twenty-eight hundred dollars. Surely there is nothing in all this tending in the least degree to impeach the motives of Starkey in making the purchase, or that evinces a purpose to aid in defrauding the creditors of Woodruff.
But there is one other item of evidence which seems to be the chief reliance of the plaintiff in err ir to show bad faith on the part of Starkey. It is found in the deposition of Woodruff, taken in the jail in the city of Chicago, where he was then confined at the instance of the plaintiffs in error, presumably — although this is not clear — for alleged dishonesty in contracting the debt on which the attachment issued.
It .seems that Woodruff, after his sale to Stone, was in the habit of being about the store, and rooming there. This was continued for awhile after the sale to Starkey, and after the service of the order of attachment in this case. In his examination on behalf of the plaintiff in erior, Woodruff was asked whether Starkey objected to his beiug there, and answered that he did. To the question “What objection did he make, if any?” he answered, “If I can state just what he said — he said that it would let the cat out of the bag, or give the thing away, and that there would more parties attach.”
This is all, and I think that, even if it were not contradicted, it falls far short of showing fraud in Starkey’s purchase. If the phrase, “let the cat out of the bag,” or “give the thing away ” were really used, what was meant by it is merely conjectural. It is not at all clear that Woodruff himself knew what idea was intended to be conveyed by it, for on cross-examination on this point, he says:
Q. You say that Mr. Starkey objected to your being in the store?
A. Yes, sir.
Q. You say his objection was that it would let the cat out of the bag; what did he mean by that ?
*294Objected to, and not answered.
Q,. Do you know anything about what be meant by that?
A. I had an idea.
Q. You don’t know; you had no conversation with him about it ?
A. No.
Q,. You know nothing further than that?
A. No.
But while Starkey admits he told Woodruff that he did not want him about the store, he denies that he made use of the words "let the cat out of the bag,” or “give the thing away.” And there being but these two witnesses as to what was said, the jury might well have concluded that no such language was used,'especially so after "Woodruff’s admission that he had consented to give his testimony for the plaintiffs in error while in jail, under the promise "that Mr. Farrington would try and get him out.” Starkey says, in his testimony on this subject, “ I told him I didn’t want him there because it would make people think he had an interest in there, and they would come upon me.” That he had such apprehension of the tendency of Woodruff’s presence in the store, and so stated to him, after learning by the levy of one attachment that he was really indebted, and that the goods were being treated by his creditors as still belonging to him, are not very remarkable, nor inconsistent with the utmost good faith on his part. And Starkey says further of Woodruff’s reputed ownership, that about two days before he bought the goods he saw Woodruff at the store one evening, and said to him, " Frank, there is a good deal of talk around town about your having an interest in this store, and I want to know about it; and he says, ‘ Jake, I don’t want any such talk, I have no interest in here.’ ” This inquiry was very natural, and, as I think, shows no fraud on his part. He saw Woodruff still about the store, and heard people suggesting *295that he still had an interest in it, although Stone was the ostensible owner. Under these circumstances, being well acquainted with Woodruff, ordinary inquisitiveness, even if he had no thought of purchasing the goods, would doubtless have prompted the inquiry. Woodruff, however, assured him that he had no interest there, and he doubtless believed it. And even as to this supposed interest which Starkey had heard talked of, there is not a particle of evidence that he believed, or had any reason to believe it was fraudulent as to creditors, for, as before stated, it is not shown that he knew until after the attachment was levied, that Woodruff had any creditors.
After a careful consideration of the evidence, I am entirely satisfied that as to the defendant in error it is not sufficient to overcome the legal presumption of innocence to which he is entitled, and to beget a belief in a reasonable mind that, in making the purchase, he committed a fraud. At all events, it is clearly not such as will justify this court in saying that a jury of twelve men, sustained by the judgment of the trial judge, were manifestly wrong in finding it was not. Therefore the verdict should be sustained, and the judgment affirmed.