Gibson vs. Love.-Opinion of Court. sale. Instead of doing this, and maintaining the force and integrity of these legal presumptions, the jury are directed in the further instructions of the Judge to abandon all legal presumptions, and go into an inquiry as to fraud, as proved or not proved directly by facts. So necessary is it to maintain the distinction between fraud in law and fraud in fact, that even in the State of New York, where the vexed questions growing out of this distinction were attempted to be settled by the enactment of a statute, declaring that "in all cases arising under the statute against fraudulent conveyances as respects creditors, the question of fraudulent intent shall be a question of fact and not of law," the courts have found it necessary still to maintain the distinction. In the case of Cunningham v. Freeborn, 3d Paige's Reports, 557, the Chancellor said: "As this cause was heard on bill and answer only, the denial of all fraud in the execution of the assignment is conclusive evidence of the fact, in favor of the defendants, unless that allegation is inconsistent with or contradicted by some other statement or admission in the answer. But the Vice Chancellor was correct in supposing that the general denial of fraud was not sufficient, if it appeared upon the face of the assignment that its legal effect would be to delay, hinder and defraud the complainant and other creditors of the assignor. The Revised Statutes have not made the fraud itself a question of fact in all cases, neither indeed was it possible for the Legislature to do so; for when a party has intentionally executed an assignment or conveyance of his property, which must hinder and defraud his creditors of their just demands, the question whether the conveyance is fraudulent or not, necessarily becomes a question of law and not of fact." See,, also, 11th Wendell, 241, and 6th Hill, 433. "So with respect to libels, where the fact of publication is incontestable, if the paper, which is the subject of indictment or information, has upon the face of it a natural and Gibson vs. Love.-Opinion of Court. obvious tendency to promote sedition, it is no subject of inquiry by evidence whether the party had actually such intention in his mind or not. What passes in the mind of man is not scrutable by a human tribunal-it is only to be found out by his acts. Every man of sufficient understanding is to be responsible for his actions-he is supposed to be cognizant of the law as the rule by which every man is to be governed, and, therefore, it is his business to know it. If, therefore, a man publishes what the law says is treasonable, seditious or libellous, the intent with which he does it is mere matter of legal inference from the fact of publication, and is not the subject of proof either one way or the other." Mr. Justice Ashurst's judgment, Rex v. Dean of St. Asaph, 3d Term Reports, 428. In the case now before us the court should have instructed the jury that, in the absence of positive proof of a fraudulent intent on the part of Love, they should infer it from his having retained possession of the slave after selling him absolutely, unless there was some evidence not of a general character negativing a fraudulent intent, but of a character to explain this possession which the law regards as a badge of fraud-as that the slave was too sick to be removed, or that, for the convenience of the grantee, John C. Love had kept him for a short time. The possession of the slave by the grantor for two years after the absolute sale, and for his own convenience, gives to the mere possession the force of more than mere prima facie evidence. So potent is the effect of presumptions of this character that, by the operation of the statute of frauds they must prevail, as we have already intimated, to establish a fraud, even where the jury are satisfied that there was no acutal fraudulent intent-much more when there is a mere absence of proof of actual fraud. In the case of Salmon and Bennett, 1 Connecticut Reports, 505, the Chief Justice says "though there "be no fraudulent intent, yet if the grantor was considera"bly indebted and embarrassed at the time and on the eve Gibson vs. Love.-Opinion of Court. "of bankruptcy, then such conveyance will be void as to "creditors." The fraud thus established is sometimes and appropriately called statutory fraud, and this term implies that there may be a species of fraud, sufficient to avoid a conveyance, distinct and different from the moral, actual fraud into which the jury in this case were directed to inquire. It is the absence of all recognition of this species of fraud, in the instructions given in this case, that makes them erroneous. The cases in the books which illustrate and enforce these views are very numerous and of very high authority, but they are so familiar to the profession that we shall refer only to a few of them. Twyne's case, reported in 3 Coke, 80, is the most celebrated of these, and in the commentaries on that case, in Smith's Leading Cases, by both the English and American editors, we find all the most important authorities arranged and digested, and the principles involved very clearly and learnedly discussed. The weight of the authorities is very decidedly in favor of the general principle that, in the sale of chattels, unless possession follows and accompanies the deed, it is fraudulent and void as to creditors. In Edwards v. Harben, 2 Term Reports, 587, one Mercer executed a bill of sale to Harben, to whom he was indebted, of all his household furniture and effects, by way of security for his debt, with a parol agreement that if the debt were not paid within fourteen days, Harben might enter upon the effects and sell them at the end of that time.— Mercer, retaining possession, died eleven days thereafter, and on the next day Harben took possession of the effects and sold them. Edwards, another creditor of Mercer, brought suit against Harben, as executor de son tort of Mercer, and the question for the court was, whether the defendant be entitled to retain the proceeds of the effects or whether the bill of sale was void as against the creditors of Mercer. It was held that Harben was liable to be sued as executor Gibson vs. Love.-Opinion of Court. de son tort, for the debts of the deceased; for, says Justice Buller, "Unless possession accompanies and follows the "deed it is fraudulent and void. This case has been ar"gued by the defendant's counsel as being a case in which "the want of possession is only evidence of fraud, and that "it was not such a circumstance, per se, as makes the trans"action fraudulent in law. That this point which we have "considered, and we are all of opinion that if there is noth"ing but the absolute conveyance without the possession, "that in point of law is fraudulent." After the English rule on this subject had been thus discussed, declared and settled, it was repeatedly held that an absolute bill of sale of chattels, unaccompanied with possession, was fraudulent at law and void as against creditors. 2 Kent, 518. In the Supreme Court of the United States the rule laid down in Edwards v. Harben has been approved and adopted, and it is declared that an absolute bill of sale is itself a fraud in law, unless possession accompanies and follows the deed. See Hamilton v. Russell, 1 Cranch, 305. "Modern "decisions," says Chief Justice Marshall in that case, "have "taken this question up upon principle, and have deter"mined that an unconditional sale, where the possession "does not accompany and follow the deed is, with respect to "creditors, on the sound construction of the statute of Eliz"abeth, a fraud, and should be so determined by the court." "We think that the intent of the statute is best promoted "by that construction, and that fraudulent conveyances "which are made to secure to a debtor a beneficial interest "while his property is protected from creditors, will be most "effectually prevented by declaring that an absolute bill of "sale is itself a fraud, unless possession accompanies and "follows the deed." All the Federal Courts have followed the construction here laid down by the Chief Justice. In Virginia the same principle has been directly and repeatedly adjudged to be Gibson vs. Love.-Opinion of Court. well settled. Alexander v. Deneale, 2 Munford, 341. Robertson v. Ewell, 3 Munford, 1. Land v. Jeffries, 5 Randolph, 211. In this latter case the real purpose and extent of the explanations allowed to be made to the jury to rebut the presumptive evidence arising from possession after an absolute sale, and the proper understanding of which will reconcile many apparently contradictory authorities on this point, are well defined. It was held "that when the grantor "of personal property remains in possession after an abso"lute conveyance, the conveyance is prima facie fraudulent; "but such possession is not conclusive evidence of fraud, "barring every explanation. It will lay with the purchaser "to explain and rebut the presumption of fraud-as if the "the slave be purchased and not taken away for seven "months it may be shown that he was too sick to be re"moved." The explanation must relate to the possession. If that is unexplained, it is conclusive evidence of a fraudulent intent. The States of New York, (before the revised statutes,) Kentucky, Illinois, Indiana, South Carolina, New Hampshire, Pennsylvania, Connecticut and Vermont recognize the rule as laid down in Hamilton v. Russell, as to absolute bills of sale, though differing among themselves on the subject of mortgages. In New-Hampshire the distinction to which we have referred as made in the case of Land v. Jeffries is fully adopted. "When conveyances by one in debt are impeached, "the question is, was there a secret trust? and in absolute "sales possession is prima facie evidence of it, and if unex"plained, conclusive." Parker v. Pattee, 4 New-Hampshire Reports, 176. The South Carolina cases make a distinction where the purchaser is a creditor of the grantor, as is the relation of the parties in the case before us. Adopting the rule just referred to as prevailing in New-Hampshire, in the case of an absolute sale for a price paid, it was held that "where |