#### John Schroeder v. Thomas Walsh.

Instructions. — The court is of opinion that the instructions'upon fraudulent sale stated the law accurately and correctly, and therefore the judgment is affirmed.

Appeal from the Circuit Court of Grundy county; the lion. Charles Blanchard, Judge, presiding.

Opinion filed August 7, 1885.

*591Mr. P. A. Armstrong and Mr. L. H. Bisbee, for appellant.

Hr. S. C. Stough, for appellee.

Lacey, P. J.

The appellant was the sheriff of Grundy county, and as such levied a writ of attachment in favor of Wm. Young & Co. v. Ward & Pierce, issued September 26, 1878, on a stock of goods worth about $2,200, as is claimed, as the property of Ward & Pierce. The appellee replevied them, and upon a trial the jury found the issues for appellee, and the motion for a new trial having been overruled, this appeal was taken. The appellee claimed the title to the goods by virtue of a sale of the goods to them by Ward & Pierce, September 17, 1878. The appellant con. tended and tried to show on the trial that the sale from Ward & Pierce to appellee was fraudulent, and made for the purpose of hindering and delaying creditors; on the other hand appellee contended that the sale was bona fide, and made without fraud and in good faith for a valuable consideration of 82,000.

The evidence was mainly directed to this issue on the one side and the other, and upon the evidence, under the instructions of the court, the verdict of the jury was for appellee, and sustained the sale.

There is no dispute but that there was valid delivery of the possession of the goods by Ward & Pierce to appellee at the time of the sale and before the levy of the appellant’s attachment, and the main question was as° to the good faith of the transaction. This cause was in this court before, and reversed on account of the error of the court in matter of law, and will be found reported in 10 Bradwell, 36.

The facts of this case and the sale were one of a series of sales and transactions of Ward & Pierce, who, becoming insolvent, made sale of this stock of goods to appellee; and Samuel Ward, of the firm, about the same time made sale of his real estate, two deeds to appellee and one to one Willard Small, both sons-in-law of Samuel Ward. One of the deeds to appellee was for 88i acres, worth about $35 to $10 per *592acre, and another, the store building and lot occupied by Ward & Pierce, both subject to mortgage. The other deed was to Small, of 113 acres of land, and also contract for the purchase of sixty acres upon which some payments had been made, one James Seamark being the owner and holder of the legal title. These sales of the real estate were attached by Wm. Young & Co., in a bill in equity to set aside the conveyance for the benefit of their judgment against Ward & Pierce, and was tried by the circuit court, and decree sustaining the deeds, and Wm. Young & Co. have brought the case here by appeal, and it is numbered 1360, and we have tried it in connection with this suit. But in this case we have nothing to do with any matter except the sale of the goods. We will not undertake to examine the evidence in detail; but content ourselves in stating our conclusions.

We are well satisfied that the evidence is abundantly sufficient to sustain the verdict if the court made no mistake in laying down the law to the jury, and of this complaint is made by appellant. Instructions Ao. 4, 6, 7, 8, 9, 11 and 16 and the modification of appellant’s last instruction are complained of. We have examined the alleged error and find no substantial cause for complaint. The criticisms on the 4th instruction, that it required the appellee to make out the charge of fraud by direct and positive evidence, is not well taken. We only required the appellant to make out the charge of fraud by a preponderance of the evidence, and there is nothing in the instruction to lead the jury to think that the court meant positive evidence, and the other instructions plainly told the jury that fraud might be made out by proof of circumstances; and for the same reason the objection made to the appellee’s 6th instruction is not well taken. The 7th instruction, that no presumption of fraud attached because appellee dealt with his friends, and that a man in failing circumstances has a right to prefer one creditor to another, to so dispose of his property that one creditor will receive his pay in full and another nothing, is not xvell taken. We see no good objection to that instruction. Certainly there could be no presumption of fraud merely because the vendor dealt with his friends, either f rima facie or conclusive.

*593Similar objections are made to the other instructions named and are not substantial. The modification of appellant’s last instruction could not mislead the jury, and in fact we can not see from the abstract what the modification was, if any. The instructions given on the part of appellant were so full and particular on all the real questions of law involved that we are unable to see how the jury could have been misled.

We see no valid reason for the reversal of the judgment and it is therefore affirmed.