majority">Wilde J.-

delivered the opinion of the Court. This was an action of trespass against the defendant, a deputy sheriff, for taking and carrying away the plaintiff’s vessel ; and the defendant justifies the taking, under a writ of attachment against Warren Averill. On the trial several questions of law • were raised relating to the validity of the plaintiff’s title, which have been ably argued, and the decision of the Court thereon I will now briefly state.

Previous to the 9th of March, 1831, the plaintiff was the owner of the vessel in question, but on that day he sold the same to Warren Averill, and to one Lakeman and one Butler, viz. three fourths to Averill, and the remaining fourth to Lakeman and Butler.

The plaintiff then introduced evidence to show a repurchase of the vessel, and the questions arise on the defendant’s objections to the plaintiff’s title as thus acquired.

1. The first objection is, that the purchase from Lakeman and Butler was made without consideration, and was therefore fraudulent and void. This objection was overruled, and it is very clear that it cannot be maintained. The creditors of Averill had no legal right to question the validity of that purchase. It was valid as against the vendors, and all the world excepting their creditors and subsequent purchasers. If it was fraudulent against them, they, or persons claiming under them, could alone avoid it. This sale had no connexion with that from Averill. They were distinct transactions, and evidence of fraud in the one would have no tendency to show fraud in the other.

2. The second objection relates to the purchase of Ave-rill’s share in the vessel. It was proved, that before this purchase, Averill, being in embarrassed circumstances, had given a bill of sale of his share in the vessel to one Caldwell, without consideration, for the purpose of preventing its being attached by his creditors ; and when the plaintiff agreed to *460purchase, he took a bill of sale from Caldwell, and not directly from Averill. On this evidence the court held that Caldwell had the legal title, and the jury were so instructed. To this decision and direction to the jury the counsel for the defendant except, and the exception seems plausible, but it will not bear examination.

The conveyance to Caldwell was voidable only, not absolutely void, and although the creditors of Averill had the right to avoid the conveyance, yet they had not in fact avoided it. They had attached the property it is true, but their attachments were withdrawn, it being agreed that this and other property attached should be distributed among the creditors in satisfaction of their debts. The legal title therefore still remained in Caldwell. It was voidable, it is true, but not absolutely void.

After the conveyance from Caldwell to the plaintiff, it was too late for the creditors of Averill to avoid the conveyance from him to Caldwell. For by the payment of a full consideration to Averill the plaintiff’s title was confirmed, and the fraud in the original conveyance was purged. The plaintiff therefore stands on as good a footing as he would have stood on, had he purchased of Caldwell, bond fide, and without knowledge of the fraud. And besides, the facts are sufficient to show a sale directly from Averill to the plaintiff, if there be any doubt as to the validity of the conveyance from Caldwell.

3. The next exception is to the charge of the judge as to the delivery of the vessel. It was proved that the officer who attached the vessel discharged the keepers and made a delivery in form to the plaintiff, after his purchase ; and the jury were instructed, that if this delivery was made with the knowledge and assent, and in behalf of Averill, it would be well. Whether the delivery was made with the assent of Averill, and on his behalf, were questions which were properly left to the jury to decide ; and the evidence is sufficient to authorize them to find in the affirmative. And certainly the instructions to the jury in this respect were correct.

4. Nor can we perceive any thing exceptionable in the charge of the Court in respect to the evidence of payment. It was proved, that at the sale the plaintiff agreed to indorse a *461certain sum on his note against Averill, but it was not then done. The jury were instructed, that if the indorsement was not made until after the defendant’s attachment, the delay would not necessarily vitiate the sale ; but that it was a circumstance for the jury to consider, in connexion with the other evidence, in determining the question whether the sale was fraudulent or not. It certainly cannot be maintained that this delay was conclusive evidence of a fraudulent intent; it was therefore properly submitted to the jury with the other evidence.

5. So the question, whether, on the evidence, the sale to the plaintiff, connected with the agreement to reconvey, amounted to a mortgage, or was an absolute sale and a conditional promise to reconvey, was properly left to the jury to determine. This depended on the intention of the parties, and that was to be ascertained by parol evidence, of which the jury were the proper judges. The circumstance that it could not be recorded as a mortgage, had a strong tendency to show that it was not intended as such by the parties.

6. As to the rule of damages, the jury were not instructed, as is supposed by the argument for the defendant, to assess damages for the detention of the vessel and the breaking up of the voyage. The instruction was, to estimate the damages according to the value of the vessel at the time of taking, “and the additional damages sustained, if any.” But this general remark would not justify the jury in assessing damages for the breaking up of the voyage.

But whether the jury were misled or not by this remark, we think the damages are excessive, very far exceeding the value of the vessel, according to the weight of the evidence. But this we do not consider a sufficient reason for setting aside the verdict and granting a new trial so as to open the whole merits of the case to future litigation, which have been once fairly tried, especially as the verdict may be set aside in part, and a new trial granted with respect to the assessment of damages only, as was done in the case of Winn v. Columbian Ins. Co. 12 Pick. 288 ; and thus the only error existing may be correct ed without the expense of a new trial on the merits

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